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2004 DIGILAW 648 (RAJ)

Jagdish Teli v. State of Rajasthan

2004-04-22

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - This criminal appeal under section 374 Cr.PC. by appellant Jagdish Teli arises out of the judgment and order dated 7.11 2000 passed by the Additional Sessions Judge, Kishangarh, Ajmer, thereby convicting and sentencing the appellant as under: Offence under section Sentence awarded 8/18 of the NDPS Act 10 years' rigorous imprisonment with a fine of Rs. 1,00,000/-, in default of payment of fine to undergo 1 year's rigorous imprisonment. 8/21 of the NDPS Act 10 years' rigorous imprisonment with a fine of Rs. 1,00,000/-, in default of payment of fine to undergo 1 year's rigorous imprisonment. 2. On 3.1.2000 at 9.00 PM, PW 2 Mahendra Singh submitted a written report, Ex.R 9 at Police Station Madanganj, district Ajmer, on the basis of which a case vide FIR, Ex.P.10 was registered. It was alleged in the report that on 3.1.2000 at 5.15 PM, PW 1 Shiv Narayan, ASI, Incharge, Chowki Madargate received secret information, Ex.R 1, on telephone that the appellant was in possession of narcotic drugs and that huge quantity of narcotic drugs can be recovered from his possession. The ASI, in turn, informed the Superintendent of Police Ajmer, who constituted a special team to take necessary action. The above information was also conveyed to the Circle Officer, who told that he would also be coming to the house of appellant in Mehnat Nagar. According to the report, the police party and the Circle Officer reached Mehnat Nagar at 7.20 PM. He alongwith Circle Officer and two police witnesses, namely Shiv Narayan, ASI and Baldev Ram Constable entered the house of appellant and found the appellant sitting on a double bed. The appellant disclosed his identify as Jagdish S/o Kanji Teli. Thereafter, PW 2 Mahendra Singh, Sub Inspector having informed the appellant about the secret information gave him a notice (Ex.R 7) under section 50 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as the Act) thereby informing him that he has to conduct his search and that of his house and therefore, he can consent to be searched either in the presence of a Magistrate or in the presence of a gazetted officer. The Sub Inspector further informed the appellant that Om Prakash, Circle Officer present at the spot was also a Gazetted Officer and if he wishes, he can also give his consent to be searched in the presence of Circle Officer. Thereupon, the appellant consented for his search in the presence of Deputy Superintendent of Police (Circle Officer). 3. In the course of search of the person of appellant, opium weighing 700 grams was recovered from his possession, which was kept in the pocket of his jacket. A sample of 30 grams was taken and the sample and remaining opium were sealed separately in two different packets. 4. In the course of search of the house of appellant, charas weighing 2.90 kgms. kept concealed in a plastic 'katta' lying in side the double bed of his room was recovered. A sample of 200 grams for examination by the FSL was taken. The sample and the remaining charas were sealed in separate packets. 5. As per the prosecution case, Ganja weighing 5.100 kgms was also recovered from the house of appellant. A sample of 500 grms was taken. The sample and remaining Ganja were sealed separately. 6. The samples of recovered contraband were sent to Forensic Science Laboratory for examination and receipt Ex.R 12 was obtained. The FSL report, Ex.P13 indicates that chemical examination gave positive tests for the presence of chief constituents of coagulated juice of opium poppy and on microscopic and chemical examination of the substances in remaining two sample packets, they were found to be charas and Ganja. 7. After completion of usual investigation, the police submitted a charge sheet against the appellant. The trial court, on the basis of evidence and material collected during investigation and placed before it, framed charges against the appellant. The appellant denied the charges and claimed trial. 8. In order to prove its case, the prosecution examined as many as 11 witnesses and got exhibited some documents. After the prosecution evidence was over, the accused was examined under Section 313 Cr.RC. In defence the accused did not examine any witness. 9. At the conclusion of trial, the learned trial Judge found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellant as stated above. Hence, the present appeal against conviction. 10. In assailing the conviction, the main thrust of the argument of Mr. In defence the accused did not examine any witness. 9. At the conclusion of trial, the learned trial Judge found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellant as stated above. Hence, the present appeal against conviction. 10. In assailing the conviction, the main thrust of the argument of Mr. AK Gupta, counsel for the appellant is that there was complete non-compliance of the mandatory provisions of Section 42 of the Act. According to the learned counsel, where an officer takes down any information in writing under sub-section (1) of Section 42 of the Act or records grounds for his belief under proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Referring the evidence, learned counsel argued that PW1 Shiv Narayan, ASI received information from the informer at 5.15 PM and prepared a Fard, Ex.R 1, but the prosecution has failed to produce the same in evidence. As per his statement, he alongwith Baldev Ram and Mehram, constables went to S.R Office and informed the Superintendent of Police about the information. Neither any document has produced nor the Superintendent of Police has been examined to prove that any such information was received. In this background, learned counsel argued that conviction of the appellant cannot be sustained on the ground of failure on the part of the investigating agency to comply with the mandatory requirements of section 42 of the Act. 11. I have given my earnest consideration to the above argument and have gone through the evidence and material on record. 12. The prosecution case as unfolded during trial by PW 1 Shiv Narayan, Assistant Sub Inspector appears to be that on 3.1.2000, Shiv Narayan, ASI of Madar Gate Police Chowki received secret information from the informer and prepared a memo, Ex.P1 and thereafter informed the Superintendent of Police Ajmer about the information. The Superintendent of Police, in turn authorised PW 2 Mahendra Singh, Sub Inspector, who at the relevant time was posted in the Office of Superintendent of Police, and constituted a team under his leadership to conduct search, seizure and arrest. Thereupon, Mahendra Singh alongwith police party proceeded to the house of appellant and conducted search of the person of appellant and that of his house, seized the contraband and arrested the appellant, after complying with the provisions of the Act. Thereupon, Mahendra Singh alongwith police party proceeded to the house of appellant and conducted search of the person of appellant and that of his house, seized the contraband and arrested the appellant, after complying with the provisions of the Act. It is also evident from the cross examination of PW 1 Shiv Narayan that he orally informed the Superintendent of Police and did not hand over copy of the information to him. 13. PW 2 Mahendra Singh, Sub Inspector in his examination in chief has deposed that on 3.1.2000 he was posted as Sub Inspector in the Office of Superintendent of Police. In the evening, PW 1 Shiv Narayan informed him about the secret information as regards appellant being involved in the business of Charas and opium in Kishangarh. Thereafter, Superintendent of Police was informed of the information and information, Ex.R5 was also furnished to him. The witness further deposed that Superintendent of Police formed a team under his leadership and authorised him to take further action. Thereupon, he alongwith police party reached the house of appellant, took the search and seized the contraband after complying with the requirements of law. 14. A perusal of information memo, Ex.P.5 prepared by Mahendra Singh, Sub Inspector demonstrates entirely a different story with what he has deposed in his statement before the court. He has stated that he received Information on 3.1.2000 at 5.35 PM to the effect that Jagdish Teli was involved in selling Charas, Opium and Ganja at his house in Mehnat Nagar, Madanganj and in receiving the information he proceeded to the spot to take further action and sent the information memo Ex.R5 to the Superintendent of police. In these circumstances, it is evident that when Mahendra Singh, S.I. proceeded on the spot after informing the Superintendent of Police vide Ex.P.5, then no question of authorisation having been issued by the Superintendent of Police does arise. However, on perusal of search and seizure memo, Ex.P.2 it appears that when Mahendra Singh informed the Superintendent of Police about the information received by Shiv Narayan, the Superintendent of Police, in turn, authorised him to take further action. Be that as it may, there is no iota of evidence to support the fact that Mahendra Singh, PW 2 was authorised by the Superintendent of Police to either conduct search or to arrest the accused. Be that as it may, there is no iota of evidence to support the fact that Mahendra Singh, PW 2 was authorised by the Superintendent of Police to either conduct search or to arrest the accused. Further, neither the Superintendent of Police has been examined in evidence nor any such document authorising Mahendra Singh was produced. In this view of the matter, it cannot be concluded that PW 2 Mahendra Singh, Sub Inspector was authorised by the Superintendent of Police u/s. 41 (2) of the Act to take further action in the matter. 15. Undisputedly, the Inspectors of Police and Sub-Inspectors of Police are empowered to exercise the powers under Section 42 of the NDPS Act, provided posted as Station House Officer. In this regard, reference may be made to S.O. No. 115 dated 16th October 1986, which provides as under: "In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act)................. posted as Station House Officers, to exercise the powers mentioned in Section 42 of the Act with immediate effect." 16. From the Notification quoted above, it stands clear that Inspectors of Police and Sub Inspectors of Police can exercise the powers under Section 42 of the NDPS Act only when they are posted as Station House Officer. In the case at hand, PW 2 who alleged to have recorded the information and conducted search was at the relevant time posted as Sub Inspector in the office of Superintendent of Police and was not authorised to conduct search and seizure. Likewise, PW 1 Shiv Narayan, ASI was not the Station House Officer and hence he was also not the person empowered to exercise powers under Section 42 of the Act. Therefore, it must be concluded that both PW 1 Shiv Narayan, ASI and PW 2 Mahendra Singh, SI were not the officers authorised under Section 42 of the Act to record the information and conduct the search in view of the above referred Government Notification, which has resulted in vitiating trial against the appellant. 17. Therefore, it must be concluded that both PW 1 Shiv Narayan, ASI and PW 2 Mahendra Singh, SI were not the officers authorised under Section 42 of the Act to record the information and conduct the search in view of the above referred Government Notification, which has resulted in vitiating trial against the appellant. 17. I am fortified in my view by a decision of the Apex Court in Roy V.D. v. State of Kerala (2000(10) SRJ 169) , wherein their Lordship of the-Supreme Court held as under: "Now, it is plain that no officer other than an empowered officer can-resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or to make a complaint under Clause (d) of Sub Section (1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorised officer under Section 41 (2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial." 18. Reference may also be made to a decision of the Apex Court in State of Punjab v. Balbir Singh (1994 Cr.L.R. (S.C.) 241) , wherein their Lordships have made in clear that only the empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by any one other than such officers, the same would be illegal. Reference may also be made to the following observation of their Lordship : "The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substance. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of these officers mentioned therein of receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates trial." 19. For the reasons aforesaid, the conviction of appellant Jagdish Teli under Sections 8/18 and 8/21 of the NDPS Act cannot be sustained and is liable to be set aside. 20. In the result, the appeal is allowed. The conviction of appellant Jagdish Teli under Sections 8/18 and 8/21 of the NDPS Act is set aside and he is acquitted of the charges. The appellant is in jail and he be released forthwith, if not required in any other case.Appeal allowed. *******